Civil Action

A CIVIL ACTION

The legal system is an essential element in the successful operation of this country. It is a system that is utilized every day, by every type of person, from the average blue-collar worker to the average Wall Street broker. There is a multitude of ways that the legal system is put to use. One such way is the class action lawsuit. A Civil Action, by Jonathan Harr, uses the account of a single case, Anne Anderson, et al., v. W.R. Grace & Co., et al, to illustrate the power and importance of class action lawsuits in the civil justice system.

The purpose of class action lawsuits is to give the common man the ability to take on the largest corporate or private entities, who can afford the very best legal services, and have a chance of redressing the wrong done by these entities (Clark, sec. 1). Without class action lawsuits, ordinary citizens acting individually would not have the means to challenge corporate and governmental wrongdoers.

A Civil Action provides an in depth account of the life of one class action suit. It explores the role of the lawyer in litigating situations, focusing on the critical factor of proving causality. It brings to light numerous pitfalls encountered by both the prosecution and defense. In addition to exposing the potential pitfalls that can occur in a class action lawsuit, A Civil Action also touches on the motivation behind these cases. A definite motivation must exist for all persons involved in a class action lawsuit, since the uncertainty, stress, and pitfalls that accompany this form of civil action are tremendous.

A Civil Action did not attempt to sugarcoat the process of trying a case such as the Woburn case. The complication were numerous and often hard to overcome. For the plaintiffs, the biggest hurdle faced was proving causality. Nearly all other obstacles Schlichtmann and his staff encountered were directly related to the attempt to prove causality.

In a civil case, as opposed to a criminal case, winning is determined by the preponderance of evidence. In other words, the majority of the evidence must suggest finding for the plaintiff. Of course, the burden of proof remains on the plaintiffs, but as Professor Nesson explained in the book, the plaintiffs must prove only "that it is Ð''more than likely true than not' Ð'- a standard often taken to mean by 51 percent or better" (Harr 236). Although this is easier to achieve than proving beyond a reasonable doubt, it still has its difficulties. The harm must be linked to the behavior of the defendant, a factor often hard to prove.

The attempt to link the harm to the behavior of the defendant produced its share of successes and failures for the Schlichtmann team. Not only did the plaintiffs have to prove that the corporations contaminated the water, but they also had to show that the contamination caused the leukemia and the other health problems. To do this they enlisted the help and expertise of numerous doctors and specialists. Naturally the defending side recruited their own set of experts. As in any case, each side is going to have an expert who will refute the testimony of the other side's expert. This is a normal part of arguing a case, but can cause confusion and complication on the part of the jurors.

A lesser-anticipated pitfall associated with expert witnesses, is the possibility of them making a mistake. Especially in a case such as Woburn, where both sides have a slew of expert testimony, lawyers such as Schlichtmann aren't able to catch or prevent every mistake. Even if eventually caught and corrected, one mistake can prove to be very damaging. In A Civil Action, George Pinder, Schlichtmann's expert in hydrology and groundwater movement, made a minor calculating mistake. Although minor, "Schlichtmann knew that Facher and Keating would not miss this mistake, and that they would use it on cross-examination to attack Pinder's credibility" (Harr 327). An expert witness whose credibility is questioned can no longer be seen as an expert witness. For this reason, even minor mistakes by witnesses are considered to be serious pitfalls.

Proving causality becomes even more difficult if the prosecution is faced with dishonest witnesses. In the Woburn case, extensive evidence supported the plaintiff's theory that Riley Tannery had polluted the land with TCE. Despite this comprehensive evidence, John J. Riley adamantly denied any wrongdoing. Schlichtmann was certain that Riley was lying, but he had no obvious way to prove that. "He hadn't been able to find any tannery witnesses who could testify to using TCE. And Riley had testified under oath that there were no records of the chemicals the tanner had used before 1979" (Harr 193). A dishonest witness such as Riley can be harmful to a case, since often there is no solid way to prove a person is lying. Unfortunately for Schlichtmann the trial had already ended by the time solid proof of Riley's dishonesty finally surfaced.

Despite the numerous pitfalls that the prosecution encountered, perhaps none was more daunting and ever present as the lack of money. Schlichtmann and his team took the Woburn class action lawsuit knowing that it would require a significant amount of money, but none of them had anticipated spending as much as they did. The prosecution spent copious amounts of money in order to obtain as much proof of causation as possible. There was no limit to what they would spend for medical testing, environmental testing, expert analysis and testimony. In addition, they were inundated with bills for everything from daily transcripts to dry cleaning. Although much of the money was well spent, much of it was also spent frivolously. Fine wine and suites at the Ritz Carlton were among the unnecessary indulgences that contributed to the immense debt. In the end the expenses for the case totaled $2.6 million. With proper budgeting and frugality that figure could have been lowered considerably, but this was something Schlichtmann and his team realized too late.

Because of the lack of money on the part of the prosecution, an additional hurdle they faced was postponement of the trial date. Even though extra time meant more preparation, it also meant spending more money. "They were now half a million dollars over budgetÐ'...Gordon figured they could make it to the trialÐ'... The only thing they couldn't afford, Gordon figured, was a postponement of the trial" (Harr 263). On the contrary, the defendants faced an opposite problem. It wasn't money they had run out of, but time. Facher was desperate for more time